ethical dilemmas for the mental health professional ... · 10. see id. at 391. 11. see sieling v....

California Western Law ReviewVolume 34Number 1 Symposium: Law and Psychology Article 12

1997

Ethical Dilemmas for the Mental HealthProfessional: Issues Raised by Recent SupremeCourt DecisionsDavid L. Shapiro

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ETHICAL DILEMMAS FOR THE MENTAL HEALTH

PROFESSIONAL: ISSUES RAISED BY RECENT SUPREME

COURT DECISIONS

DAVID L. SHAPIRO*

For many years, there has been a perception in the mental health com-munity that the laws and codes of professional ethics are light years apart.In fact, when one surveys many legal decisions, the similarities are oftengreater than the discrepancies. The discrepancies tend to be overly drama-tized and polarize members of the mental health and legal communities.For example, the very concept of "standard of care" in malpractice litigationrefers back to the level of practice exercised by the average or relativelyprudent practitioner. Quite frequently, this level of practice is defined bythe ethics code of the relevant mental health community.

In recent years, there have been many attempts to open dialogues be-tween mental health professionals and legal and judicial professionals, andto teach mental health professionals the importance of legal constraints intheir work. As an example, there are now many joint degree programsacross the country where the school awards both a Ph.D. in psychology anda J.D. degree. There are also a variety of organizations which promote suchinterchange (Division of Psychology and Law, American Psychological As-sociation; American Academy of Psychiatry and Law; American Academyof Forensic Psychology). In addition, joint workshops are now being pre-sented that are sponsored by several organizations. For example, a recentconference on family law was sponsored by the American PsychologicalAssociation and the American Bar Association, and a conference is beingplanned by the same two organizations on issues raised in criminal law.

Nevertheless, there are areas of the law with which many mental healthprofessionals are unfamiliar, yet which may have a significant and profoundimpact on their daily practice. This survey reviews recent Supreme Courtcases which raise ethical issues for mental health professionals.

Two documents referred to frequently within the course of this essayare Ethical Principles of Psychologists and Code of Conduct' ("Ethical

Ph.D., University of Michigan, Diplomate in Forensic Psychology, American Board ofProfessional Psychology. Dr. Shapiro is currently Chief Psychologist, Maryland Peniten-tiary.

1. American Psychological Ass'n, Ethical Principles of Psychologists and Code of Con-

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Shapiro: Ethical Dilemmas for the Mental Health Professional: Issues Raise

Published by CWSL Scholarly Commons, 1997

CALIFORNIA WESTERN LAW REVIEW [Vol. 34

Principles") and the Specialty Guidelines for Forensic Psychologists2

("Specialty Guidelines"). The general format of the essay will be a discus-sion of the highlights of certain Supreme Court decisions and an assessmentof the ethical issues involved in each for mental health professionals.

I. ONE COMPETENCY FITS ALL: GODINEZ V. MORAN3

In Godinez v. Moran, the defendant, Richard Moran, was charged witha capital offense, first degree murder. Following a plea of not guilty, he wasexamined by two psychiatrists who agreed that he was competent to standtrial.4 Following this, Moran expressed a desire to change his plea to guilty,to discharge his attorney, and to represent himself.5 After Moran did so, hewas sentenced to death.6 When he made these decisions, Moran was takingseveral medications including Dilantin, Inderal, Phenobarbital, and Vistaril.7Moran was quite depressed and had tried to commit suicide shortly beforehis arrest.8 The dissent in Godinez noted, among other things, that the drugsmay have caused disorientation, confusion, depression, short-term memoryloss and drowsiness

The legal issue was whether or not the finding that Moran was compe-tent to stand trial was also sufficient to render Moran competent to representhimself. The United States Supreme Court, in the majority opinion, heldthat the mental capacity involved in competency for pleading guilty orwaiving the right to counsel is the same as competency to stand trial."0 Thisappears to fly in the face of a number of other cases that suggest that differ-ent levels of competency are involved." The Godinez Court, in essence, re-

duct, 47 AM. PSYCHOLOGIST 1597-1611 (1992) [hereinafter Ethical Principles].2. Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for

Forensic Psychologists, 15 LAw & HuM. BEHAV. 655-65 (1991) [hereinafter SpecialtyGuidelines].

3. Godinez v. Moran, 509 U.S. 389 (1993).4. See id, at 391.5. See id. at 392.6. See id. at 393.7. See id. at 410. Dilantin is an anti-epileptic drug which may cause confusion. Inderal

is a beta-blocker which may cause "light-headedness, mental depression, hallucinations, diso-rientation, and short-term memory loss; and Vistaril, a depressant that may cause drowsiness,tremors, and convulsions." Id. at n.1.

8. See id. at 416.9. See id. at 417 (Blackmun, J., dissenting) ("such drugs often possess side effects that

may 'compromise the right of a medicated criminal defendant to receive a fair trial'.. .(quoting Riggins v. Nevada, 514 U.S. 127, 142 (Kennedy, J., concurring)).

10. See id. at 391.11. See Sieling v. Eyman, 478 F.2d 211, 214 (9th Cir. 1973) (holding that when defen-

dant's mental capacity is at issue, the court must "look further than to the usual 'objective'criteria in determining the adequacy of a constitutional waiver" [of the right to a trial]);Westbrook v. Arizona, 384 U.S. 150 (1966) (holding that defendant has a right to a hearingto determine his competency to waive his right to trial); Faretta v. California, 422 U.S. 806

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19971 ETICAL DILEMMAS FOR MENTAL HEALTH PROFESSIONALS 179

jected the claim that a higher competency standard is necessary when a de-fendant decides to represent himself/herself.'2 The Court essentially sug-gested a very low standard of competency to plead guilty or to waive the as-sistance of counsel. The majority opinion made a very essential distinctionbetween the decision to waive counsel and the ability to act in one's de-fense.13 In other words, the Court stated that the decision to waive counsel,isolated and by itself, is no more complicated than the decisions that need tobe made by a defendant in the course of a criminal trial. The majorityopinion insisted that how well a defendant represents himself/herself is notan issue. 4

In a strong dissent, Justice Blackmun argued that equating competencyto stand trial with competency to waive counsel is inappropriate. He notedthat one cannot isolate the term "competency" and apply it in a vacuum.'5Blackmun described the majority's opinion as "monolithic" and noted that"[c]ompetency for one purpose does not necessarily translate to competencyfor another purpose." 6 Blackmun rejected the claim that there can be anymeaningful distinction between competency to waive the right to counseland competency to represent oneself. 7

In fact, Justice Blackmun's very eloquent dissent reflected and mirroredwhat many forensic psychologists have been stating for years. For example,Thomas Grisso argues very strongly that there are different functional ca-pacities involved in different competencies, and that being competent forone purpose in no way implies competency for another. 8 Richard Bonnieadvocates the same point when he notes the distinction between functionalcompetency and decisional competency, a factor largely overlooked by themajority opinion.'9

Alan Felthous argues quite persuasively that the Godinez decision willresult-in "a right to represent oneself incompetently. '2 Felthous notes thatclinicians are rarely asked to evaluate a defendant for competency to waivecounsel, and this practice will probably become even rarer following thisdecision." Felthous believes that a separate inquiry into competency towaive counsel is superfluous once a finding of competency to stand trial is

(1975) (holding that a defendant has a constitutional right to represent himself at trial).12. See Godinez, 509 U.S. at 399.13. See id. at 399-400.14. See id. at 400.15. Id. at 413 (Blackmun, J., dissenting).16. Ia17. See iL at 416.18. See THOMAS GRIsso, EVALUATING COMPEIrcES (1986).19. See Richard Bonnie, The Competence of Criminal Defendants: A Theoretical Per-

spective, 10 BEHAV. Sci. & L. 291-316 (1992).20. Alan R. Felthous, The Right to Represent Oneself Incompetently: Competency to

Waive Counsel and Conduct One's Own Defense Before and After Godinez, 18 MENTAL &PHYSICAL DISABILITIES L. REP. 105 (1994).

21. See id, at 110.

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CALIFORNIA WESTERN LAW REVIEW

made.2"An even more striking discussion of the implications of Godinez may

be found in a contribution by Michael Perlin, who analyzes the Colin Fergu-son trial in light of Godinez v. Moran.' The ludicrous display of Colin Fer-guson attempting to represent himself in the Long Island Railroad shootingraised many questions in the public's mind about how such an obviouslymentally ill individual could represent himself. The simple answer is thatthe trial judge followed the standard set forth in Godinez Of course,Godinez dealt with the minimum competency required by the Constitutionfor the waiver of important Constitutional rights. Any state is allowed toadopt higher standards than that minimum.

In fact, in Illinois v. Lego, the Illinois Supreme Court recognized theneed to adopt this higher standard.' The Lego court noted that the defen-dant did not need to possess the skills of an attorney but had to be aware ofthe pitfalls in self-representation, knowing what he/she is doing, and makinga choice rationally.' Lego had made comments to the trial court about hislegal abilities, and remarked that he was probably "the best attorney in theUnited States," manifesting his delusional thinking.' The court noted:

If by virtue of delusion occasioned by mental illness a defendant believesfalsely that his legal skills equal or exceed those of virtually any attorneywho might represent him, he can hardly be said to be aware of the dangersand disadvantages of self-representation or to know what he is doing andto be making his choice with eyes open. To disregard the cause of a de-fendant's misperceptions and to take the position that delusion borne ofmental illness has no bearing on the knowing and intelligent choice towaive the assistance of counsel would do violence to the most fundamen-tal principles associated with waiver.2

The Godinez decision was quite unusual in that the majority rejectedthe concept, described above and reflected in the works of Grisso and Bon-nie, that competence is tied to specific functions to be performed (functionalabilities). In fact, the Godinez Court noted and rejected this in a rather"cheap shot" at mental health professionals: "While psychiatrists and schol-ars may find it useful to classify the various kinds and degrees of compe-tence.., the Due Process Clause does not impose these additional require-ments. 29 Psychologists and other mental health professionals who have

22. See id23. Michael L. Perlin, Dignity was the First to Leave: Godinez v. Moran, Colin Fergu-

son, and the Trial of Mentally Disabled Criminal Defendants, 14 BEHAv. Scl. & L. 61(1996). Colin Ferguson was the African-American man who opened fire on "white targets"on a New York commuter train in December 1993. See id

24. See id.25. Illinois v. Lego, 660 N.E. 2d 971 (Il. 1995).26. See id. at 973.27. Id. at 975.28. Id. at 979.29. Godinez v. Moran, 509 U.S. 389,402 (1993).

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1997] ETHICAL DILEMMAS FOR MENTAL HEALTH PROFESSIONALS 181

performed competency to stand trial evaluations over the years virtually al-ways, in such evaluations, tailor them to the specific functional abilitiesnecessary to understand and participate in proceedings with the assistance ofcounsel. The consensus, indeed, what may be described as the standard ofcare for mental health professionals, is that competence is situationallybased and needs to be evaluated in terms of the specific functions that haveto be performed by the defendant." That is, different functional capacitiesare involved in competency to stand trial, competency to represent oneself,competency to plead guilty or, for that matter, competency to consent to orrefuse treatment.

The Ethical Principles has several sections relevant to the issues raisedby Godinez v. Moran. Most notably, Standards 2.01 and 7.02 are highlyrelevant." These sections speak about the fact that assessments, recommen-dations, reports, and diagnostic and evaluative statements "are based on in-formation and techniques.., sufficient to provide appropriate substantia-tion for their findings.32 Within this context, reference is made once againto the widely held belief and, in fact, standard of care of mental health pro-fessionals, of the need to assess different functional capacities. If a mentalhealth professional made a blanket statement that because a person is com-petent to stand trial, he/she is also competent to plead guilty, to waive coun-sel, to consent to or resist treatment, or is competent to be executed, the pro-fessional would certainly not be operating in accord with this particularethical principle. The "information and techniques" clearly are not suffi-cient to provide appropriate substantiation for the findings. In a similarmanner, Standard 2.04(c) speaks of the need to "identify situations in whichparticular interventions or assessment techniques or norms may not be ap-plicable or may require adjustment in administration or interpretation."33

Here again, this principle would be consistent with the functional abilitiesapproach and totally inconsistent with a blanket "one competency fits all"approach.

Sections of the Ethical Principles that deal with informed consent,'along with Section 4(E) of the Specialty Guidelines 5 which talk about a"thorough notification of the purposes, methods and intended uses of the fo-rensic evaluation," raise serious problems from an ethical point of view.That is, if one follows the logic of Godinez v. Moran, then one would needto conclude that at the time of obtaining informed consent for a competencyto stand trial evaluation, one would also need to inform the defendant thatthe results of this evaluation, for example, dould also be used to determinewhether he/she could represent himself or whether he/she was competent to

30. See GRisso, supra note 18.31. SeeEthical Principles, supra note 1, §§ 2.01, 7.02.32. Id. (emphasis added).33. Id. § 2.04.34. Ethical Principles, supra note 1, § 4.02 (Informed Consent to Therapy).35. Specialty Guidelines, supra note 2, § 4(E).

5




be executed. Finally, Standard 2.02(a) of the Ethical Principles speaks tothe issue that psychologists use assessment techniques only for "purposesthat are appropriate in light of the research on or evidence of the usefulnessand proper application of the technique."' Because the "techniques" usedin competency evaluations are based on the assessment of given functionalcapacities, it would be a clear violation of this standard to use such assess-ment techniques to render statements regarding other competencies.

In summary, rather than adopting the "one competency fits all" ap-proach suggested by the majority opinion in Godinez v. Moran, the practi-tioner will need to continue regarding each competency as representing adifferent functional capacity in order to practice ethically. In other words,the minimal competency standard enunciated by the Supreme Court to sat-isfy due process concerns is not high enough to enable a psychologist topractice in accordance with the Ethical Principles. In fact, following theSupreme Court decision of "one competency fits all" would not only violatethe Ethical Principles but would also represent a substantial deviation fromthe accepted standard of care in conducting such evaluations.

II. USE OF EXPERT TESTIMONY: DAUBERT V. MERRELL DowPHARMACEUTICAL3 7

In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court of theUnited States indicated that the "general acceptability theory" enunciated inFrye v. United State?' was too austere a standard to be used for the admissi-bility of expert testimony. 9 The Daubert Court, in the majority opinionwritten by Justice Blackmun, suggested that the more liberalized versionconsistent with the Federal Rules of Evidence be adopted." Unfortunately,several questions remain unanswered after Daubert with respect to theadoption of the Federal Rules of Evidence.

The new standard was believed to be more flexible and liberal thanFrye, in that it might allow the admission of innovative or "cutting edge"material that would not pass muster under the more restrictive Frye stan-dard. On the other hand, Daubert appoints the individual trial judge as a"gatekeeper." Thus, according to the language of the decision, the trialjudge is required to evaluate proposed expert testimony in light of whether itis "reliable.""' (These criteria actually refer more to validity in a psychologi-

36. Ethical Principles, supra note 1, § 2.02.37. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).38. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held "while courts

will go a long way in admitting expert testimony deduced from a well-recognized scientificprinciple or discovery, the thing from which the deduction is made must be sufficiently es-tablished to have gained general acceptance in the particular field ...." Ia at 1014.

39. See Daubert, 509 U.S. at 589.40. The Court agreed with the defendant's argument that the Frye test had been super-

seded by the Federal Rules of Evidence. See iL41. See id& at 597.

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cal sense than to reliability.) In this assessment, the trial judge is calledupon to determine: whether the proposed methodology and opinion arebased on hypotheses that are testable, whether they have been tested,whether they have been peer reviewed, whether they have been published,whether they have a known error rate, and whether they have general ac-ceptability in the field."

Many mental health scholars have shown a good deal of consternationbecause these criteria appear to make admissibility far more narrow thanunder Frye, rather than more flexible. In fact, many assessment instrumentsand interview techniques do not fall under the rigorous scientific methodol-ogy suggested by these standards. For instance, while a given practitionermay perform a criminal responsibility evaluation by conducting extensiveclinical interviews, utilizing psychological testing, reviewing police reports,witness reports, hospital records, and interviewing witnesses and police of-ficers, and although this represents the standard of care in doing such as-sessments, one could raise the issues of whether this methodology is test-able, what exactly is being tested, whether it has been tested, whether it hasa known error rate and therefore whether it would satisfy these criteria.

Mental health professionals who perform child custody evaluations arequick to note that most of their techniques, such as interviewing teachers,family, extended family and obtaining school records, as well as assessingthe children and the parents, do not have a known error rate and do notcontain hypotheses that can be easily tested. Are such evaluations, there-fore, inadmissible in a court of law that uses Daubert as the criterion foradmission? Some mental health professionals have pointed to Footnote 8 inDaubert v. Merrell Dow, which states that "Rule 702 also applies to'technical or other specialized knowledge.' Our discussion is limited to thescientific context because that is the nature of the expertise offered here."43

In other words, should mental health professionals not be concerned thattheir forensic evaluations will be excluded in court because they represent"technical or other specialized knowledge" rather than scientific knowl-edge? On one hand, this would provide some degree of comfort, but on theother hand, this would contribute to a "watering down' of whatever gainspsychology has made as a scientific enterprise. A recent federal districtcourt ruling, however, suggests otherwise."

In United States v. Scholl, an expert was called to testify about whethera defendant did or did not have the mental state to willfully falsify taxforms." The expert, who was subpoenaed to present scientific literature tosupport his conclusion that the defendant did not have such a mental state,admitted that no such studies existed.' The expert's opinion was "not based

42. See id at 593-94.43. Id. at 590 n.8.44. See United States v. Scholl, 959 F. Supp. 1189 (D. Ariz. 1997).45. IML46. See i& at 1194-95.

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on highly controlled studies but on personal perceptions not subject to veri-fication or evaluation. 47 Therefore, the court denied the expert's cumula-tive opinion testimony on the disorder's effect on the defendant's allegedmental state of denial. 8 The decision was, in fact, even more restrictive.The expert was allowed to testify about his diagnosis of the defendant as acompulsive gambler, relating the diagnosis only to the criteria listed inDSM-IV.49 Testimony about "associated features" was excluded because,according to the court, those "associated features" did not meet the Daubertcriteria.50

It is too early to tell what the long range implications of this findingwill be. Perhaps it will have little impact because testimony of one's mentalstate regarding ability to tell the truth is probably not admissible under otherrules of evidence.5' On the other hand, if a broader interpretation of thiscase is taken, that the expert could not testify because his opinion was basedon personal perception not subject to verification or evaluation, the implica-tions could be quite ominous for mental health professionals involved in fo-rensic work.

The Ethical Principles contain several sections that are relevant to theissues raised by the Daubert case. Standard 1.06 (Basis for Scientific andProfessional Judgments) states that "[pisychologists rely on scientificallyand professionally derived knowledge when making scientific or profes-sional judgments or when engaging in scholarly or professional endeav-ors. 52 Does this suggest that the scientifically and professionally derivedknowledge needs to abide by the Daubert criteria in order to be admittedinto a court of law? Standard 1.23 of the Ethical Principles (Documentationof Professional and Scientific Work) speaks of the fact that when psycholo-gists have reason to believe that records of their professional services willbe used in legal proceedings, "they have a responsibility to create andmaintain documentation in the kind of detail and quality that would be con-sistent with reasonable scrutiny in an adjudicative form."' Once again, ifthis "reasonable scrutiny" refers to the "gatekeeping criteria" outlined inDaubert, it is unlikely that any psychologist performing clinical/forensicevaluations could satisfy that requirement. Does this require us to "bowout" of the legal arena entirely?

Again, reference is made to the sections dealing with Godinez v. Mo-ran, Standards 2.01(b) and 7.02(a)-whether the conclusions are based in

47. Id. at 1194-97.48. See id.49. See id "DSM-IV" refers to the AMEmCAN PsYcHIATRc ASS'N, DIAGNOSTIC &

STATIMsCA MANUAL(4th ed. 1994).50. See United States v. Scholl, 959 F. Supp. 1189 (D. Ariz. 1997).51. See FED. R. EviD. 704 ("ultimate issue testimony").52. Ethical Principles, supra note 1, § 1.06.53. Id. § 1.23.

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data sufficient to provide appropriate substantiation.' Will this be judgedaccording to the "scientific criteria' or according to the clinical criteria thatare often used? Standard 2.02(a), discussed earlier in reference to Godinez,is also relevant here.' This section deals with the use of assessment tech-niques that are appropriate in light of the research on, or evidence of, theusefulness and proper application of the technique.' While it is certainlyreasonable for an ethical clinician to very narrowly utilize the various foren-sic assessment instruments, if one follows the Daubert criteria, then thereare many instruments being utilized (i.e., the majority of projective and ob-jective tests) that could not be shown to be appropriately related to certainlegal criteria or that have known error rates in reference to these legal crite-ria.

Finally, the Specialty Guidelines speaks about the need, during initialconsultation with the legal representative of the party seeking services, forthe forensic psychologist to discuss "the known scientific bases and limita-tions of the methods and procedures that they employ .... " It is highlyquestionable whether a legal representative would even contract with a psy-chologist if that psychologist, for example, were to tell an attorney that un-der the Daubert criteria none of the psychological tests used would be ad-missible in court

The ethical implications of this whole area are somewhat vague andambiguous at best. In a recent presentation regarding Daubert and forensicmental health assessment, Kirk Heilbrun suggested essentially that, despitethe vastly different wordings of the two decisions, in the majority of casestechniques found admissible under Frye would also be found admissibleunder Daubert Moreover, Heilbrun suggests the opposite is also true;those techniques and methods that would not be found admissible underFrye are not admissible under Daubert.' None of the cases surveyed byHeilbrun, however, spoke to the issue raised in the Scholl case: whether aclinical interview could pass muster under the Daubert criteria. Mentalhealth professionals essentially will have to continue to do carefully docu-mented, well-validated work and present to courts in expert testimony onlythose conclusions that have appropriate substantiation, without going be-yond the limits of their data or making unwarranted inferences. This willcertainly keep psychologists in line with any ethical constraints. Whether itwill amount to admissibility under the Daubert criteria remains to be seen.

54. Id. §§ 2.01(b), 7.02(a).55. Id. § 2.02(a).56. See id.57. Specialty Guidelines, supra note 2, § 4(A).58. Kirk S. Heilbrun, Daubert and Forensic Mental Health Assessment Uses and Impli-

cations, presented at Biennial Meeting of American Psychology Law Society (Hilton Head,S.C. March, 1996) (unpublished manuscript on file with author).

59. See id.

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Ill. PSYCHOTHERAPIST-PATIENT PRIVILEGE: PENNSYLVANIA V. RITCHI?

Ritchie illustrates a growing trend that encroaches on psychotherapist-patient privilege. Traditionally, the exceptions to psychotherapist-patientprivilege are relatively straightforward and somewhat limited. The mostwidely recognized exceptions are: (1) the patient-litigant exception when apatient puts his/her mental state into litigation; (2) court-ordered evalua-tions; (3) involuntary commitment procedures; (4) as defenses against mal-practice claims; (5) child abuse reporting laws; and (6) duty to protect thirdparties laws."

As illustrated in Ritchie, there is an additional area of encroachment-the criminal defense exception. In a large number of cases, defense attor-neys in a criminal proceeding will attempt to obtain the treatment records ofan individual who is either the victim of or a witness to the criminal offense.The attorneys do so in an attempt to impeach the individual by suggestingthat the individual's psychiatric/psychological symptoms would renderhim/her not credible as a witness. This clearly poses serious ethical dilem-mas for the psychologist trying to provide mental health services to the in-dividual, often as the result of the very trauma the individual experienced orwitnessed. The psychologist is then placed in the position of having treat-ment records subpoenaed in a criminal proceeding, with a predictably ad-verse impact on the therapeutic relationship and on the patient's mentalhealth. States vary in the way they have approached this problem.

Some early decisions suggested that the psychotherapist-patient privi-lege must yield to the rights of the defendant in a criminal proceeding be-cause the latter is seen to be Constitutionally based and is regarded as morecompelling than a privilege, which is granted in an individual state by stat-ute. Another related case in Arkansas suggested that not all of the recordneed be revealed but only the diagnosis and the fact that the patient was intreatment.6 While this was a commendable "balancing act" on the part of

60. Pennsylvania v. Ritchie, 480 U.S. 39 (1987).61. See CLIFFORD C. STROMBERG, THE PSYCHOLOGIST's LEGAL HANDBOOK 371-424

(1988).62. See People v. Reber, 233 Cal. Rptr. 139 (Cal. Ct. App. 1986). In Reber, the defen-

dant had been charged with false imprisonment, assault with a deadly weapon and sodomy, aswell as various other charges, against two separate victims. See id. at 142. Defense counselattempted to obtain the victims' psychiatric records arguing the Sixth Amendment right toconfront witnesses against him. See id. at 143. The defendant wanted to show, for the pur-pose of impeaching their credibility as witnesses, that both victims had histories of paranoidschizophrenia. See id. The trial court denied their request. See ieL at 144. The appellatecourt held the trial court erred in merely identifying and protecting the privilege because itfailed to weigh the defendant's need for access to privileged information. See id. at 146.However, the appellate court ultimately concluded there was no probability that the recordscould have "materially assisted the defense in such a way as to undermine confidence in theoutcome of the trial." IMt at 147. Therefore, it affirmed the lower court's denial of the re-quest. See id at 149.

63. See Home v. Arkansas, 677 S.W.2d. 856 (Ark. Ct. App. 1984).

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the Arkansas court, it also raised the possibility of attorney misuse and mis-representation. An attorney could use this very limited data to influence ju-rors in rejecting the testimony of a given witness, causing that wit-ness/patient great distress and potential harm. A Massachusetts courtillustrated the extreme to which this could be taken.' The court in Com-monwealth v. Stockhammer stated essentially that treatment records can beturned over directly to the defense attorney who has issued the subpoena.65

This, of course, would be the most certain way for any privileged informa-tion to be revealed and used against the patient.

In Ritchie, the defendant was charged with sexually assaulting hisdaughter. 66 In preparing his defense, he sought to obtain records maintainedby the Department of Protective Services in that state.6' However, statutoryregulations made the records privileged, and the agency refused to releasethem. ' The issue presented to the court was essentially the balancing actbetween permitting the defendant in a criminal case to have all evidencenecessary to put on an adequate defense and the desire to protect the confi-dentiality of the therapeutic relationship. The court tried to strike a balance,stating that if there were a showing that the privileged file might containrelevant information, the judge should require that the holder of the confi-dential information provide the file to the court (not directly to counsel, incontrast to Stockhammer).6' The court would then review the file in camerato determine whether the probative value outweighed the prejudicial impact.If nothing of material importance was found by the judge, the materialwould be returned to the agency; but if something of material relevance wasfound, only that information would be revealed to the defendant.'0 Essen-tially, Ritchie illustrates that there is a Constitutionally-required criminal de-fense exception to privilege statutes. While most state privilege statutes donot contain criminal defense exceptions, there is a growing encroachmenton privilege through a variety of case law decisions.

A number of unanswered questions remained following the Ritchiecase. Since the case involved the records of a state agency, the questionarose whether the result would be the same if the records of someone in pri-vate practice or in a private mental health center were the subject of the

64. Commonwealth v. Stockhammer, 570 N.E.2d. 992 (Mass. 1991).65. See id. Note that this case was decided after the Supreme Court decided Ritchie in

1987. Basically, the Stockhammer court dismissed Ritchie as non-binding. See id. at 1001.The court held that the Massachusetts constitution afforded the defendant greater rights thanthe Sixth Amendment to the U.S. Constitution regarding the right of confrontation. See id at1002. The court further found that in camera review does not necessarily protect defendant'srights, and that a protective order would better serve the interests of the state, the victim andthe defendant. See id

66. Ritchie, 480 U.S. at 43.67. See id68. See id.69. See idL at 58, 60.70. See id

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subpoena. Generally, because courts may not always know what may berelevant to a criminal defense, there may be a tendency by trial courts topermit broad disclosures of information from therapy.

More recently, a somewhat reassuring case that addressed this issue asit applied to private practitioners emerged from Maryland.7 In Goldsmith v.Maryland, the defense attorney had to overcome a very high threshold be-fore the court would even consider reviewing the material in camera. Thatis, the court forbade a "fishing expedition" sojourn into the records.' Thecourt required the defense attorney to state the specific material, which waseither expected to be found in the records or known to be in the records, thatwould be relevant to the defense and to the impeachment of the credibilityof a given witness.73 In other words, a defense attorney's assertion thatsomeone was in treatment and therefore that person's mental state wasquestionable, would be insufficient to require an in camera review by thetrial court. If, on the other hand, the defense attorney could make a com-pelling enough argument (for example, that the patient/witness/victim inquestion experienced auditory hallucinations and had serious distortions inreality testing), then the court would review the record in camera becausesuch issues could potentially be relevant to witness credibility. The Gold-smith case made it very clear that the court would review only cases inwhich there was this prima facie showing of relevance and even then, uponreview, the trial court would have to be convinced that the probative valueoutweighed the prejudicial impact.

As an example, the following is an illustration of inappropriate behav-ior on the part of a therapist in such a situation. A psychologist had beentreating a woman who stated that she had been sexually assaulted by a manshe had dated. She had, in fact, brought criminal charges against this man.When the defense attorney became aware of the fact that the woman was intreatment, the attorney subpoenaed the therapist and the treatment records.The psychologist essentially panicked and came to court the next morningwith records in hand and allowed himself to be sworn in as a witness, re-vealing material from the clinical record that was very damaging to the pa-tient and to the therapeutic relationship. The psychologist testified that thewoman had been diagnosed with Borderline Personality Disorder and had,in the past, brought a fraudulent charge of rape against a boyfriend who hadabandoned her. When the material was presented to the jury, more than areasonable doubt was raised in the jurors' mind that the woman may havefabricated the rape charge in the current case, and the jury acquitted the de-fendant.

Several Ethical Principles, of course, come into play here. At the veryoutset, Standard 1.02 (Relationship of Ethics and Law) notes that if ethical

71. See Goldsmith v. Maryland, 651 A.2d 866 (Md. 1995).72. Id. at 888.73. See id.

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19971 ETHICAL DILEMMAS FOR MENTAL HEALTH PROFESSIONALS 189

responsibilities conflict with the law, psychologists should make knowntheir commitment to the Ethical Principles and attempt to resolve the con-flict in a responsible manner. 4 This would suggest that upon receipt of thesubpoena the psychologist, rather than undergoing a panic reaction, shouldhave filed a Motion to Quash the subpoena, noting an inability to complywith the subpoena because of the possible destruction of the relationshipand the potential harm to the patient. Then, an evidentiary hearing would beheld where the judge determines whether the records needed to be released.The filing of the Motion to Quash or of a Motion for Protective Order wouldcertainly fulfill the psychologist's need to "take steps to resolve the conflictin a responsible manner."75 If, of course, the judge ordered the psychologistto release the records, then the psychologist could do so, having documentedthe attempt to comply with the Ethical Principles. Merely "knee-jerking" inresponse to the subpoena, as the psychologist did here, represents a clearviolation of the Ethical Principles.

Standard 1.14 (Avoiding Harm) is also relevant in that it exhorts psy-chologists to "take reasonable steps to avoid harming their patients or cli-ents" and to "minimize harm where it is foreseeable and unavoidable." '76

Once again, a Motion to Quash would be consistent with, and in the spiritof, the Ethical Principles. Standards 1.15 (Misuse of Psychologist's Influ-ence)' and 1.16 (Misuse of Psychologist's Work 8 are relevant and againurge the psychologist to "take reasonable steps to correct or minimize themisuse or misrepresentation." Certainly, the Motion for Protective Orderdescribed above would be seen as a "reasonable step," but if and when, inthe worst possible case scenario, the psychologist learns that the recordswhich have been court-ordered to be released have been misused, he/shewould need to contact opposing counsel in order to present some testimonythat would rebut the misrepresentation.

Standard 2.02(b) speaks of the ethical constraint against the "misuse ofassessment techniques, interventions, results, and interpretations" and theneed for the psychologist to "take reasonable steps to prevent others frommisusing the information these techniques provide."'79 This includes re-fraining from releasing raw test results or raw data to persons, other than topatients or clients as appropriate, who are not qualified to use such informa-tion.80 This would be another basis for the Motion to Quash, especially ifthere is psychological test material in the record that clearly could be mis-used by an attorney intent on cross-examining a witness who is also in ther-apy. Clearly, if psychological test data or interpretations, especially com-

74. See Ethical Principles, supra note 1, § 1.02.75. Ud76. Id § 1.14.77. Id § 1.15.78. Id. § 1.16.79. Id- § 2.02(b).S0. See id.

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puter-generated interpretations, are part of the file, these could be quite inju-rious when used in cross-examination. These computer program statementsare actuarial statements and may or may not be applicable to the patient at agiven point in time. Nevertheless, such test results in the hands of an ardentadvocate, using this data for cross-examination purposes, could be ex-tremely destructive. Thus, access to test data must be guarded with utmostcare.

Closely related to this is a principle, referred to several times in differ-ent parts of the Ethical Principles, about psychologists' need to indicate"any significant reservations they have about the accuracy or limitations oftheir interpretations,"'" and "[w]henever necessary to avoid misleading, psy-chologists acknowledge the limits of their data or conclusions." ' An advo-cate attempting to utilize the records for purposes of cross-examinationwould not comment on qualifications about the validity or reliability of thedata. But, Standard 3.02(c) encourages the psychologist, if he/she learns ofdeceptive statements about their work made by others, to "make reasonableefforts to correct such statements. 83

Section 5 of the Ethical Principles (Privacy and Confidentiality) iscentral to this entire discussion." Standard 5.01(a) requires psychologists todiscuss "the relevant limitations on confidentiality" and "the foreseeableuses of the information generated through their services" and that this dis-cussion of confidentiality and its limits occur "at the outset of the relation-ship."85 This suggests that if a psychologist enters into a treatment contractwith an individual who has been either a victim of or a witness to a criminaloffense, then the psychologist must, as part of the Informed Consent toTreatment, discuss the fact that under certain limited circumstances the psy-chologist may be required to reveal part or all of the records of treatment.Of course, the client should also be made aware of the fact that the psy-chologist will make every effort to protect such an intrusion into the privi-lege from occurring. Nevertheless, the client must be made aware of it andnever be given the assurance that "everything you say is confidential."

In summary, the trend in case law illustrated by Pennsylvania v. Ritchieraises a number of ethical dilemmas for the psychologist. While the phrase,"taking reasonable steps," is admittedly vague, the suggestions enumeratedabove would go a long way toward a psychologist remaining in compliancewith the Ethical Principles, even when the psychologist's records are sub-poenaed under these circumstances.

81. Id. § 2.05.82. Id. § 7.04(b).83. Md § 3.02.84. Id. § 5.00.85. Id. § 5.01.

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19971 ETHICAL DILEMMAS FOR MENTAL HEALTH PROFESSIONALS 191

IV. COMPETENCY TO BE EXECUTED: FORD V. WAIN WRIGH-16

In June of 1986, the United States Supreme Court issued a decision inFord v. Wainwright involving a habeas corpus petition filed on behalf of adeath row prisonerY The Supreme Court held that the Eighth Amendmentprohibited the state from inflicting the death penalty upon a prisoner who isinsane."' The Court further held that Florida's procedures for determiningthe sanity of a death row prisoner were not "adequate to afford a full andfair hearing" and therefore the habeas petitioner was entitled to an eviden-tiary hearing in the district court on the question of his competence to beexecuted. 9 The Court ruled that the Florida scheme for determination ofcompetency to be executed was deficient in that it precluded a prisoner orhis counsel from presenting material relevant to the prisoner's sanity, deniedthe opportunity to challenge or impeach state-appointed psychiatric opinion,and placed the decision wholly within the Executive Branch. "

The petitioner, Alvin Ford, was convicted of murder in a Florida statecourt in 1974 and sentenced to death.9 There was no evidence that he dem-onstrated a mental disorder at the time of the offense, at trial or at sentenc-ing." However, while in prison he demonstrated behavioral changes, indi-cating a mental disorder. 3 At his defense attorney's request, this led toextensive separate examinations by two psychiatrists, one of whom con-cluded that Ford was incompetent to be executed.9' Defense counsel theninvoked the Florida statute governing the determination of a condemnedprisoner's competency.95

The governor, following statutory procedures, appointed three psychia-trists who together interviewed Ford for thirty minutes in the presence ofeight other people, including petitioner's counsel, state attorneys and cor-rectional officials.96 The governor ordered that the attorney should not par-ticipate in the examination in any adversarial manner. 7 Each of the psy-chiatrists then filed a separate report with the governor, to whom the statutedelegated the final decision.98 Of some interest is that the reports reachedconflicting diagnoses but were in accord on the question of Ford's compe-

86. Ford v. Wainwright, 477 U.S. 399 (1986).87. Id88. See id at 399.89. Id at 417-18.90. See id at 413-18.91. See id. at 402.92. See id.93. See id.94. See id at 402-03.95. See id at 403.96. See id at 403-04.97. See id. at 412-13.98. See id at 404.

15




tency to be executed." Counsel for Ford then attempted to submit to thegovernor other written materials, including the reports of the two psychia-trists who had previously examined Ford, but the governor's office refusedto inform counsel whether the submission would be considered."09 The gov-ernor subsequently signed a death warrant without explanation or state-ment.Y0 ' Following an unsuccessful attempt to obtain a hearing in state courtto determine Ford's competency, counsel filed a habeas corpus proceedingin federal district court seeking an evidentiary hearing, but the court deniedthe petition without a hearing and the Court of Appeals affirmed." Uponwrit of certiorari to the United States Supreme Court, the judgment was re-versed and the case remanded.'

In addition to the defects the Court found in the Florida statute, ques-tions were also raised as to the adequacy of the examinations with severalwitnesses present, as well as the brief nature of the evaluations, consideringthe enormity of the conclusions. The Court concluded that Florida's proce-dures for determining sanity were inadequate to preclude federal redetermi-nation of the Constitutional issue.' 4 At the same time, the Court did notsuggest that a full trial on the issue of sanity was necessary to protect fed-eral interests, and the Court left it to the state to develop appropriate ways toenforce the Constitutional restriction upon the execution of sentences.'

Whereas Ford was a 1986 case and Godinez v. Moran was a 1993 case,one may certainly raise the issue of whether, in light of Godinez, Ford willbe reinterpreted. That is, if "one competency fits all," then Ford, or anyonelike him who deteriorates into psychosis following incarceration, could con-ceivable be executed because he had originally been found competent tostand trial. Of course, the length of time of incarceration and change inmental condition would be raised as countervailing issues.

Several bothersome ethical issues are raised by the Ford case. Thewhole issue of conducting an evaluation of an individual's competence forexecution can have a profound impact on subsequent proceedings. Psy-chologists are enjoined by Standard 1.14 of the Ethical Principles to "avoidharm.""' 6 That standard states, "Psychologists take reasonable steps to avoidharming their patients or clients, research participants, students, and otherswith whom they work, and to minimize harm where it is foreseeable and

99. See id.100. See id.101. See i.102. See id103. See id at 418.104. See id. at 417-18. The Court held that in a federal habeas corpus proceeding, an

evidentiary hearing is required unless the state court, after full hearing, found the relevantfacts. See i. at 410. Because the Court found the state's procedures lacking, the Court heldthat it was proper to remand for an evidentiary hearing. See id. at 417-18.

105. See id. at 416.106. Ethical Principles, supra note 1, § 1.14.

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unavoidable."" If one believes that executing another human being isharm, then participating in such evaluations at all could be seen as a viola-tion of Standard 1.14. It is beyond the scope of this paper to debate this is-sue but it has certainly been raised in a variety of paper presentations sincethe Supreme Court's decision in Ford.' Some have stated that the psy-chologist's proper response to such a request would be to "just say no.'""°9

Unfortunately, working within a correctional setting does not make such asimple response very feasible. Even more troubling is the situation in whichan individual has been determined incompetent to be executed yet the psy-chologist's role, as part of the treatment team, is to restore him/her to com-petence, so that the state may take his/her life. While such "treatment"would likely consist of medication management, if the individual is psy-chotic, it could easily be seen that a psychologist would be called on to pro-vide some degree of supportive counseling along with the medication pro-gram.

Standard 1.02 of the Ethical Principles speaks about the procedure ofmaking known a commitment to the Ethical Principles when ethical respon-sibilities conflict with the law."' 'Tak[ing] steps to resolve the conflict in aresponsible manner" might include documenting one's resistance to the pro-cedure which is about to be undertaken."' Standard 1.06 (Basis for Scien-tific and Professional Judgments) would be highly relevant, assuming thatthe psychologist is willing to perform a competence for execution evalua-tion."' With so much at stake, the statement that a psychologist will rely on"scientifically and professionally derived knowledge when making scien-tific or professional judgments" is clearly of great import."' The issue ofinformed consent referred to by Standard 1.07 (Describing the Nature andResults of Psychological Services) and Standard 2.09 (Explaining Assess-ment Results) clearly suggests that a psychologist needs to provide the de-fendant with "appropriate information about the nature of the service andappropriate information about results and conclusions" ' 4 prior to theevaluation. This would indicate the necessity for any psychologist engagingin such an evaluation to let the defendant know the purpose of the evalua-tion. While psychologists understandably may feel very squeamish aboutsuch an informed consent procedure, it may provide some degree of protec-tion in that the defendant, knowing the nature of the evaluation, may wellrefuse to participate in it. That refusal, in turn, would preclude the potential

107. Ia-108. See Kirk S. Heilbrun, Death Penalty, 5 BEHAv. Sci & L. 383-95 (1987).109. See id.110. Ethical Principles, supra note 1, § 1.02.111. I&o112. Standard 1.06 states that "psychologists rely on scientifically and professionally

derived knowledge when making scientific or professional judgments." Id- § 1.06.113. Id.114. See iUt §§ 1.07, 2.09.

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for violations of Standards 1.15 (Misuse of Psychologist's Influence)"5 and1.16 (Misuse of Psychologist's Work). "6 Standard 1.17, which urges psy-chologists to avoid multiple relationships, would preclude the psychologistfrom conducting an evaluation of competency to be executed and subse-quently providing the treatment to restore that individual to competence. "7

Standard 1.23, regarding the documentation of professional and scien-tific work, indicates that if a psychologist becomes involved in such anevaluation, there is a clear responsibility for very careful documentation,considering the stakes that are involved."'

Standards 2.01(b) and 7.02(a), which require information and tech-niques sufficient to provide appropriate substantiation for the findings, arevery important here and, given the ultimate use of the conclusions, requirelittle further comment. "9 The appropriate use of assessments and interven-tions' and the necessity to avoid obsolete tests and outdated test results12'are also highly relevant to the present situation. Of course, Standard 5.01,regarding the necessity of discussing the limits of confidentiality, is highlyrelevant in that one needs to very clearly state to the defendant not only thefact that the examination results are not confidential, but also how they may,and most likely will, be used."

Standards 7.02(c) and 7.04(b) speak to the issue of limiting the natureand extent of conclusions or recommendations when there are questionsabout reliability and validity." Once again, the chances are that if a defen-dant has given informed consent to such an evaluation procedure, it is un-likely the defendant will be totally forthcoming in her/his statements, there-fore allowing the psychologist to qualify conclusions in light of these twoStandards. In addition, if the defendant is so mentally ill as to have thequestion of competence for execution raised in the first place, it is possiblethat informed consent could not be obtained at all. Under those circum-stances the psychologist would have to decline further participation.

Looking now at the Specialty Guidelines,2 4 Guideline 3(E) suggests de-clining participation or limiting assistance in any situation where personalvalues, moral beliefs or personal and professional relationships may inter-fere with an ability to practice competently." Therefore, the clear implica-tion is that if an individual psychologist has strong feelings one way or an-

115. Seeid. § 1.15.116. See id. § 1.16.117. Seeid. § 1.17.118. See id § 1.23.119. See id §§ 2.01(b), 7.02(a).120. See id. § 2.02.121. See id. § 2.07.122. See id § 5.01.123. See id. §§ 7.02(c), 7.04(b).124. Note that while the Specialty Guidelines are not enforceable as part of the Ethical

Principles, they do provide some guidance.125. See Specialty Guidelines, supra note 2, § 3(E).

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other (i.e., either pro or con) regarding the death penalty, then participationshould be declined.

V. DETENTION AFTER DEFENDANT IS No LONGER MENTALLY ILL: FOUCHAV. LOUISIANA126

In 1992, the United States Supreme Court issued an opinion in Fouchav. Louisiana regarding the length of time that a defendant who is acquittedby reason of insanity may remain within a mental hospital." In Foucha, theCourt's analysis focused on the defendant's metal illness, or rather, his lackthereof."

Under the law in the State of Louisiana, defendants who are found notguilty by reason of insanity (hereinafter "NGRI") are committed to a mentalhospital until it can determine that they are not dangerous to themselves orto others.'29 Psychiatrists and psychologists may provide reports on defen-dants' mental conditions and whether defendants are dangerous to them-selves or others, but the ultimate decision on dangerousness and release isup to a judge following a hearing. 3' The burden of proof rests with the de-fendant to demonstrate that he/she is no longer dangerous."' The importantissue, which gave rise to this case, was that even if defendants were nolonger mentally ill, they could be kept in the mental hospital until able toprove themselves no longer dangerous."

Foucha had been adjudicated NGRI in 1984 on charges of aggravatedburglary and a firearms offense.'33 Four years later, doctors examined himand recommended that he be released, finding that he had an antisocial per-sonality but stating that this was not a mental disease and noting the condi-tion was untreatable. 3 The evidence suggested that at the time of the of-fense, Foucha was suffering from a drug-induced psychosis. 35 On the basisof the evidence, the trial court ruled that Foucha was no longer mentally ill,

126. Foucha v. Louisiana, 504 U.S. 71 (1992).127. Id-128. Id An earlier decision by the Court in 1983 tackled the same issue but did not con-

sider the mental illness. See Jones v. U.S., 463 U.S. 354 (1983). In Jones, the Court ruledthat there was a continuing presumption of dangerousness and that the length of time that aperson may serve if he/she had been convicted was not relevant to the length of time he/shewould be in a mental hospital if found Not Guilty by Reason of Insanity ("NGRI"). See id. at369. However, in Jones, the doctors who evaluated the defendant found the defendant tohave a continued mental illness. See id at 360.

129. See Foucha, 504 U.S. at 73. The dissenting opinion of Justice Thomas providesexpanded discussion of the relevant Louisiana statutes. See id at 104 & nn. 2-6 (Thomas, J.,dissenting).

130. Seeid at73.131. See id132. See id133. See id134. See id at 74-75 & n.2.135. See id at 75.

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but he had not proved that he was no longer dangerous and therefore thecourt refused to release him.136

In Foucha, the Supreme Court ruled that a state could not constitution-ally confine an insanity acquittee "'37 who is no longer mentally ill eventhough he may still be dangerous.'38 The Court emphasized that the combi-nation of mental illness and dangerousness permitted the confinement andallowing the continued detention of those who could not prove they werenon-dangerous would permit the indefinite confinement of someone foundNGRI.'33 The Court noted, "It would also be only a step away from substi-tuting confinements for dangerousness for our present system which, withonly narrow exceptions and aside from permissible confinements for mentalillness, incarcerates only those who are proved beyond reasonable doubt tohave violated a criminal law.' 40

Justice O'Connor noted in her concurring opinion that the state mightbe permitted to confine an insanity acquittee who is no longer mentally ill if"unlike the situation in this case, the nature and duration of detention weretailored to reflect pressing public safety concerns related to the acquittee'scontinuing dangerousness.' 4' As will be seen, this concurring opinion hashad reverberations in several subsequent opinions. The dissent noted thatthe state should be given considerable latitude to confine defendants untildefendants could prove that they were no longer dangerous, and that therewas sufficient basis to permit the state to detain someone who was danger-ous but not mentally ill.'43

An issue that was not discussed in the Foucha opinion was exactly whatconstitutes a mental illness. This is of note because Foucha reportedly hadan antisocial personality disorder but did not suffer from mental illness.'"

State courts reacted in a variety of ways to the Court's decision inFoucha. In Wisconsin v. Randall, Wisconsin followed Justice O'Connor'sconcurring opinion, distinguishing its statutory scheme from that in Louisi-ana.1 4

' The Randall court talked about the reflection of public safety con-cerns and the fact that the treatment program was designed to address the

136. See iL137. "Insanity acquittee" is someone who has been convicted of a crime, but not held

criminally responsible due to proof of mental illness. Wisconsin v. Randall, 532 N.W.2d 94,96 n.2 (Wisc. 1995).

138. Foucha, 504 U.S at 75-83.139. See id at 77, 82-83.140. Id. at 83.141. Id. at 87-88 (O'Connor, J., concurring).142. See Randall, 532 N.W.2d at 94; Colorado v. Hilton, 902 P.2d 883 (Colo. Ct. App.

1995).143. See Foucha, 504 U.S. at 91 (Kennedy, J., dissenting); id at 111 (Thomas, J., dis-

senting).144. See id. at 75.145. Randall, 532 N.W.2d at 94.

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person's propensity for violence.4 ' Ultimately, the court held that an insan-ity acquittee may be held in an institution as long as he/she is still danger-ous, to the extent the time does not exceed the maximum time that couldhave been imposed if the acquittee had been sentenced to prison."

Cases from both Colorado48 and California' 4 essentially included anti-social personality as a mental disorder. The courts, therefore, could justifythe continuing detention of individuals based on the fact that their personal-ity disorder rendered them a danger to society. This raises serious questionsabout what disorders fall under the purview of an insanity defense, but thiswas not discussed in these cases.

Ethical implications here mirror a large number of the earlier discus-sions having to do with the basis for scientific and professional judgment5 'and the misuse of psychologists' influence and work.'5' However, mostcritical from an ethical point of view are Standards 2.01(b) and 7.02(a)-(c)."' That is, the entire area of assessment of violent behavior and the ap-propriate use of assessment tools for that purpose come into play here.

In the past two decades, there have been dramatic advances in themethodology used to assess the potential for violent behavior. It is clearly

beyond the scope of this paper to review this voluminous literature, but asummary statement indicates that enough research has now developed tohelp delineate the various risk factors associated with violent behavior. Thishas largely been accomplished under the auspices of the MacArthur Foun-dation.'53 Never before have there been such carefully controlled studies.

146. Id at 106.

147. See id at96.148. See Hilton, 902 P.2d at 883. In Hilton, psychiatrists evaluated defendant and de-

termined that he had "'antisocial personality disorder, severe' which he characterized as be-ing an abnormal mental condition." Id at 885. The doctor further concluded that the"condition is associated with instances of dangerous criminal behavior." Id. The defendantargued that his condition did not come within the statutory definition of "abnormal mentalcondition" and therefore the state must release him. Ia Ultimately, the court construed"'abnormal mental condition' ... to include a severe antisocial personality disorder...[regardless of how] such a disorder is manifested." I&

149. See People v. Superior Court (Williams), 284 Cal. Rptr. 601 (Cal. Ct. App. 1991).In Williams, four different psychotherapists testified that defendant "suffered from a mentaldisorder which caused [defendant] to present a substantial danger of physical harm to others."Ia at 604. They diagnosed defendant with "antisocial personality disorder" using the criteriastated in DSM-III-R. Id The appellate court pointed out that the criteria for extendingcommitment includes mental disorder and is not limited to "mental disease or defect" whichis the test for insanity. IL at 609. The court ultimately concluded that antisocial personalitydisorder may be evidence of mental disorder, so long as the diagnosis is based on more thanjust repeated criminal or other antisocial behavior. See id. at 609-10.

150. See Ethical Principles, supra note 1, § 1.06.151. I& §§ 1.15, 1.16.152. See id §§ 2.01(b), 7.02(a)-(c).153. The MacArthur Foundation has been funding research in mental health law for ap-

proximately the last decade. In addition to the Risk Assessment Project, it currently fundswork on competency and a variety of other psycho-legal areas.

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Many books and monographs, as well as articles, have emerged from thisresearch, most notably the volume by Monahan and Steadman entitled Vio-lence and Mental Disorder."u Essentially this creates a "standard of care"for the assessment of violent behavior. In other words, in order to complywith the Ethical Principles requiring the grounding of opinions in estab-lished scientific principles and research,155 and having opinions based intechmiques sufficient to provide adequate substantiation for the conclu-sions, ' one would need to look to this research to determine the risk factorsthat need to be assessed before undertaking an evaluation of potential forviolent behavior."

Clearly, the other half of the standard, the mental illness aspect, re-quires equally careful documentation, though this has been far more ade-quately explicated in the past. In essence, in order to determine whether anindividual suffers from a mental illness and whether that mental illness inany way contributes to the person's potential for violence, one must care-fully review all of the recent literature surrounding risk assessment and tai-lor her/his conclusions in light of those findings. According to this research,certain mental disorders, but by no means all, represent a moderate riskfactor.

Psychologists who are called upon to render such conclusions mustavail themselves of the many training opportunities in these areas. Guide-line 3(A) of the Specialty Guidelines talks about the provision of services"only in areas of psychology in which they have specialized knowledge,skill, experience, and education.""' In addition, prior to contracting with alegal representative of the party seeking services, the psychologist has to in-form parties of "the known scientific bases and limitations of the methodsand procedures that they employ and their qualifications to employ suchmethods and procedures."' 59 In many circumstances, psychologists will beasked to render opinions for which they are not qualified by virtue of theirexperience and training, or will be asked to render opinions in areas inwhich scientific literature does not exist. Ethically, the psychologist mustdecline participation in such proceedings. Guideline 6(A) speaks about the

154. JOHN MONAHAN AND HENRY J. STEADMAN, VIOLENCE AND MENTAL DISORDER(1994). In their book, Monahan and Steadman identify four "domains" of risk factors: (1)Dispositional (2) Clinical (3) Historical and (4) Contextual. See id. at vii. Dispositional riskfactors include "anger, impulsiveness, psychopathy and personality disorders." Id. Clinicalrisk factors include "mental disorders, substance abuse.., delusions and hallucinations." I&.Historical risk factors include events in the past which "predispose" defendant to violence.Id. at 227. Contextual risk factors refer to "aspects of [defendants'] current environment thatmay be conducive to ... violent behavior." Id

155. Ethical Principles, supra note 1, § 1.06.156. See Ethical Principals, supra note 1, §§ 2.01(b), 7.02(a).157. Note also that Standard 1.05 also requires psychologists to stay current on scientific

and professional information in their fields of activity. See id. § 1.05.158. Specialty Guidelines, supra note 2, § 3(A).159. See id. § 4(A).

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psychologist's obligation to use acquired knowledge "consistent with ac-cepted clinical and scientific standards, in selecting data collection methodsand procedures for an evaluation, treatment, consultation or schol-arly/empirical investigation."'60 Finally, because assessment of violent be-havior so often becomes a "high profile" issue in the media, psychologistsmust act in accordance with Guideline 7(C), which prescribes avoiding out-of-court statements, but "[w]hen there is a strong justification to do so, suchpublic statements are designed to assure accurate representation of their roleor their evidence, not to advocate the positions of parties in the legal pro-ceeding.'' In other words, if there are misstatements regarding the psy-chologist's role or testimony, the psychologist must make statements in or-der to ensure that his/her role or scientific evidence is accurately presented.

VI. MENTAL DISORDER V. MENTAL ILLNESS: KANSAS V. HENDRICKS62

In June 1997, the Supreme Court upheld a Kansas law providing for theinvoluntary civil commitment of "sexual predators" following the comple-tion of their prison sentences in Kansas v. Hendricks.'

Hendricks had served ten years in a state prison facility and was sched-uled to be released to a halfway house in 1994." He originally had beenconvicted of sexual molestation of minors. 65 Kansas had recently enacted aSexually Violent Predator Act, and instead of releasing Hendricks sought toapply this Act." The Act established an involuntary commitment procedurefor "any person who has been convicted of or charged with a sexually vio-lent offense and who suffers from a mental abnormality or personality dis-order which makes the person likely to engage in the predatory acts of sex-ual violence."'"

What distinguishes this from a typical civil commitment statute is thatthe typical statute requires "mental illness"; but the new statute refers to"mental abnormality or personality disorder" and essentially opens thefloodgates to every conceivable diagnosis, including conditions which arelargely regarded as untreatable. "Mental abnormality" was defined in theKansas statute as "[a] congenital or acquired condition affecting the emo-tional or volitional capacity which predisposes the person to commit sexu-ally violent offenses in a degree constituting such a person a menace to thehealth and safety of others."" At the time that a "sexually violent offender"

160. Id. § 6(A).161. Id. § 7(C).162. Kansas v. Hendricks, 117 S. Ct. 2072 (1997).163. Id at2086.164. See id at 2078.165. See id166. KAN. STAT. ANN. § 59-29a02(a) (1996).167. Id at 2077 (quoting KAN. STAT. ANN. § 59-29a02(a)).168. Id (quoting KAN. STAT. ANN. § 59-29a02(b)).

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is to be released from prison, a petition is filed requesting an evaluation, anda mental health professional conducts the evaluation to determine whetherthe person is a violent sexual offender." The level of proof in these cases isthe most extreme one: "beyond a reasonable doubt." 7' If there is a findingat a subsequent trial that the person is a violent sexual offender, he/she canthen be committed until such time as the mental abnormality or personalitydisorder has been so altered that the person can be released safely."'

The Supreme Court rejected Hendricks' claims that the statute violateddue process and that he was being punished twice for the same crime. Inrejecting these claims, the Court held that the "mental abnormality" defini-tion met due process requirements for a civil commitment procedure.'73

Whether the Sexually Violent Predator Act constituted double jeopardyhinged on the issue of whether the procedures provided in the Act consti-tuted a civil commitment procedure. If so, there would be no double jeop-ardy. However, if the Act was a punitive or criminal statute, there would bedouble jeopardy. A very close split of the Court (5-4) indicated the ma-jority believed that it was a civil procedure.75

As noted in Justice Burger's dissenting opinion, a disturbing aspect ofthe Kansas statute was that Kansas, and other states who might enact similarstatutes, could fail to provide the necessary treatment.'76 In other words, thisform of involuntary commitment could be pursued even if no treatment forthe condition were available. The purpose of the confinement, in otherwords, would be the prevention of antisocial behavior, rather than anytreatment of the individual concerned. Justice Kennedy, in fact, cautionedabout the misuse of civil commitment, especially when the purpose of theconfinement is unrelated to the provision of treatment but rather is only forthe protection of the public from a potentially dangerous person.' Notably,many earlier "sexual psychopath laws" had been found unconstitutional andthis appears to be a new way of reinstating the old laws. Again, from anethical point of view, the Court assumes that mental health professionalspossess the expertise to predict future violent behavior and violent sexuallypredatory behavior.

Also of some interest is the extension of this statute to allow for thecivil commitment of individuals with personality disorders, where, as noted

169. Id.170. Id171. See id172. See id. at 2081. The 5th Amendment of the U.S. Constitution protects defendants

from being prosecuted twice for the same crime. This is known as "double jeopardy."BLACK'S LAW DICTIONARY 491 (6th ed. 1990).

173. Kansas v. Hendricks, 117 S. Ct. 2072,2081 (1997).174. See id. at 2081-82.175. See id. at 2082.176. See id- at 2088 (Burger, J., dissenting)..177. See id at 2087 (Kennedy, J. concurring).

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above in Foucha, the same Court suggested that a personality disorder wasnot an adequate basis for involuntary commitment. t18 Essentially, what theKansas statute amounts to, and the Supreme Court has essentially sanc-tioned, is the continuing confinement of these individuals following serviceof their prison time, based on an assessment of future violent behavior.

Clearly, many ethical issues are involved here. As noted above, theneed to be very precise in one's definitions following appropriate proce-dures in accord with the relevant standards of care and documenting proce-dures in terms of established scientific procedures are, as in Foucha, quitecentral. The ethical principle that appears to be most central here is Stan-dard 1.04 (Boundaries of Competence) which urges psychologists to"provide services, teach, and conduct research only within the boundaries oftheir competence, based on their education, training, supervised experienceor appropriate professional experience." 7 Additionally, in new areas, or innew techniques, psychologists can provide services only after first under-taking appropriate study, training, supervision, and consultation from peoplecompetent in these areas and techniques. In areas in which generally recog-nized standards do not yet exist, psychologists must "nevertheless take rea-sonable steps to ensure the competence of their work and to protect patients,clients, students, research participants and others from harm."'80

In addition, Standard 1.06, which addresses a psychologist's need to"rely on scientifically and professionally derived knowledge when makingscientific or professional judgments or when in engaging in scholarly orprofessional endeavors," becomes quite central here.8' For example, thearea of assessment of the potential for sexual acting-out is very much in itsinfancy and there is little consensus. Conceivably, a psychologist who iscalled upon to provide services in such a setting would be practicing out ofthe bounds of her/his competence when attempting to provide treatment fora condition for which there is no consensus as to its appropriate treatment.

Standard 4.02 (Informed Consent to Therapy) is also clearly relevant asthe individual's right to refuse treatment can become a very troubling is-sue."' Finally, once again, the issue of informed consent in the assessmentprocedure can pose many thorny dilemmas for a psychologist who is askedto perform the evaluation to determine whether a given individual is a vio-lent sexual predator."3 Part of the informed consent would need to includeinformation to the effect that the purpose of the evaluation is to help deter-mine whether the individual needs to be involuntarily confined followingthe expiration of the prison term. It is unlikely under such circumstancesthat an inmate would consent to a full psychological evaluation. In a sense,

178. Foucha v. Louisiana, 504 U.S. 71, 77, 82-83.179. Ethical Principles, supra note 1, § 1.04.180. Id181. Id. § 1.06.182. I& § 4.02.183. See id. § 1.07.

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this may provide a "self-limiting mechanism" very similar to that discussedin the previous analysis of Ford v. Wainwright."' In essence, when pro-vided a fully informed consent, the inmate may well refuse to participate inthe evaluation and the psychologist can then ethically state that he/she can-not render any final opinion due to the inmate's lack of cooperation. Undersuch circumstances, it may well be that only individuals with extreme andrepetitive violent sexually predatory behavior could be committed under thescheme. It remains an open question whether, if the psychologist cannotprovide an opinion due to limitations regarding the validity and reliability ofthe data, the commitment trial could proceed at all.

VII. CONCLUSION

In summary, I have outlined some major ethical issues raised by recentSupreme Court decisions. This analysis, of course, has not exhausted alldecisions of the Supreme Court involving mental health professionals.There are several where the issues are fairly straightforward and do not raisetroubling ethical concerns. This analysis and summary has restricted itselfto only those cases where such issues are of concern.

184. See supra Part IV.

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ethical dilemmas for the mental health professional ... · 10. see id. at 391. 11. see sieling v....

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